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June 4 and Charter 08: Approaches to Remonstrance 2009

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June 4 and Charter 08: Approaches to Remonstrance May 4-June 4 Conference May 4, 2009 P. Potter I. Introduction On the day that Hu Yaobang died, April 5, 1989, a friend brought me to the centre of Peking University, just beside the old bookstore and as we reviewed the dazibao (‘the last honest man has died’) my friend mused – ‘there’s a political storm coming, and it will end in blood.’  This was months before the military assault on Tiananmen Square and  numerous  other  locations  in  Beijing.  Such  prescience  is  not  uncommon  among China’s intellectual and political elites whose sense for the changing currents of politics and power far outstrips the pale efforts of diligent academic scholars. While I have not heard directly on these matters recently, I suspect that friends and colleagues in China might well be revisiting their experiences during 1989 as they consider what will be the outcome of the phenomenon of Charter 08. The document  entitled “Charter  08” was inspired by the discourse around Charter  77 associated with Vaclav Havel and others calling for political reform in Czechoslovakia in 1977.  Charter 08 was signed by over 300 prominent Chinese intellectuals, officials and community  leaders  on  the  60th  anniversary  of  the  Universal  Declaration  of  Human Rights (December 10, 2008), and offers a framework for political and legal reform in China.  The document begins with a critical review of the past century of political and legal developments in China but levels particular criticism against political abuses under the  People’s  Republic  of  China,  including  the  Cultural  Revolution  and  the  1989 Tiananmen Massacre.  The document  recognizes  improvements  in  living conditions  in China under  the policy of reform and opening  up since 1978, and acknowledges  the Chinese  Government’s  important  steps  in  signing the  ICESC and the ICCPR and its promise to promote a human rights action plan.  However these efforts are dismissed as paper formalities issued by a regime that is committed first and foremost to maintaining its own power. II. Principles Charter  08  articulates  six  fundamental  principles  including  freedom,  human rights, equality, republicanism, democracy, and constitutional rule. Many if not all are compatible with Chinese traditions of legal and political culture. 1.  Freedom:  Described  as  a  universal  human  value,  and  includes  freedom of speech, freedom of press, freedom of assembly, freedom of association, freedom in where to live, and the freedoms to strike, to demonstrate, and to protest. The first four of these principles are recognized in Article 35 of the PRC Constitution. The freedoms to strike, demonstrate, and protest are broadly commensurate with rights enshrined in the 1978 PRC Constitution – including rights to strike and the "four big freedoms" (to speak out freely, air views fully, hold great debates, and write  big-character  posters),  although  these  were  later  removed  in  the  1982 Constitution. Of course the formality of recognition stands some distance away from the reality of operations, but nonetheless the principles themselves are not wholly alien to China’s rulers. 2.  Human  Rights:  Centers  on  the  inherency  of  rights.   Contrast  with  PRC Constitutional  doctrine  on  socialist  human  rights  as  conditioned  on  needs  of socialism  and  on  compliance  with  state  and  social  interest.   Also  issue  of inherency  vs.  grant  (and  by  implication  issues  of  recognition,  protection, enforcement).   Nonetheless  there  are  ground  for  discussion  and  possible accommodation with the Human Rights principle of Charter 08. 3. Equality: Already articulated in the Constitution – e.g. equality before the law; equality  of  nationalities.   Despite  issues  of  formalism  in  conceiving  equality (based on legal forms) and enforcing equality (formal equality dilemma), there is still the possibility of  accommodation within existing system. 4. “Republicanism”: Suggests alternatives to the unitary state model of the PRC. Also potentially in conflict with core Party doctrine on the primacy of Party rule. Nonetheless  the  principle  of  “Republicanism”  describes  an  environment  of competing  interest  groups,  civil  society groups and individuals  that  is  at  least marginally comparable to the interest group politics process that currently is seen to characterize the NPC and much of the government rule making process. 5. Democracy: Articulates ideals that have already been accepted in name at least by the PRC régime.  Issue of course is what form of democracy (query issues of “Western” democracy; socialist democracy; democratic centralism etc.). Charter 08  suggests  that  democracy  means  the  holders  of  major  official  posts  in government  at  all levels should  be  determined  through  periodic  competitive elections.   Obviously  not  in  place  at  the  moment.   However,  the  tentative beginnings of local elections over the past 15 years suggests that there may be room for accommodation in this element as well. 6. Other principles of Popular Sovereignty; People’s Exercise of Political Power; Dignity,  Freedom,  and  Human  Rights  for  Minorities are  already  affirmed nominally in the PRC Constitution Articles 2, 4, and 33 and in other laws and policies.  The final principle of Constitutional Rule and the Centrality of the Legal System and Legal Regulation to protect the freedom and rights of citizens, limit and define the scope of government power and provide appropriate administrative systems is also affirmed nominally in the PRC Constitution Art. 5. Thus, Charter 08 sets forth a set of governing principles that are broadly commensurate with existing formal statements of PRC governance. This offers important opportunities for government to strengthen its commitment to ideals of human rights in practice. Of course, the basic challenge that Charter 08 poses for the PRC regime is not so much a matter of complementarity of ideals but the meaning attributed to those ideals and the possibilities  of predictable  and consistent  practice  of enforcement  and compliance.  In each  of  the  principles  listed,  the  conflict  with  the  current  PRC  régime  centres  on normative interpretation. The rights recognized and conferred by the PRC Party/state are all dependent on maintaining the Party’s monopoly on political power, whereas the rights embodied in the principles of Charter 08 are not so constrained.  In an important sense, Charter 08 challenges the Party/state to make good on its claims to recognize a variety of constitutional and human rights by using the regime’s formalistic language but offering interpretations  that  are  not  limited  by  the  political  imperatives  of  the  regime.  The challenge to governance then becomes not so much an issue of the principles themselves but rather the régime’s willingness to withdraw its conditions for fulsome recognition and enforcement. This is a wonderful example of Selective Adaptation in local (as opposed to international) context.  Charter  08  selectively  adapts  principles  already  articulated  by  the  ruling Party/state,  but  interprets  them  differently  based  on  different  normative  framework. Factors of perception (perception of what the ideals mean to the Party/state and what they can  mean  in  other  normative  contexts);  complementarity (potential  for  harmonizing Party/state  ideals  with  Charter  08  principles);  and  legitimacy (competing  claims  for legitimacy) are all evident. III. Proposals Tension between Party/state ideals and Charter 08 ideals, and the role of Selective Adaptation, are revealed in the steps advocated by the Charter 08 signatories to put the articulated principles into practice. 1. New Constitution  : This would serve as the basis for human rights and political authority, and which would require compliance by all groups (including the Communist Party of China).  This proposal offers a departure from current arrangements that effectively exempt the Party from legal and constitutional scrutiny. 2. Separation of Powers  . Charter 08’s articulation of the need for a separation of powers of government  runs counter  to current  arrangements  of the unitary state.  Unitary  state  as  reaction  to  problems  of  vertical  integration  (silos); factionalism; benwei zhuyi etc. Preoccupation with strong state in reaction to historical legacy of state weakness.  Query how effective has the unitary state been  as  a  remedy  for  these  ills  (note  literature  of  functional  federalism; fragmented  authoritarianism,  etc.).  However,  in  the  ongoing  process  of administrative  and  bureaucratic  reform,  separation  of  powers  has  already become an operational norm – jurisdictional issues (courts vs. NPC standing committee on legal interpretation; administrative bodies vs. NPC on issues of policy  implementation).  However,  meaningful  division  of  power  would  of course be problematic for the Chinese Communist Party. 3. Legislative Democracy: Already compatible with existing Party/state doctrine, but query issue of legislative initiative with Party (zheng fa system). 4. Independence of a judiciary: Already expressed in Constitution.   However, challenge  is  in  operations  –  query role  of  adjudication  committees;  Party Secretaries in Courts; etc. 5. Public control over civil servants and the bureaucracy: Already expressed in Constitution.  Potential legal avenues for enforcement through Administrative Litigation  Law  system  (also  State  Compensation  Law).   However, institutional capacity issues arise in enforcement. 6. Guarantees  of  human  rights;  establishment  of  a  human  rights  committee: Potential  for accommodation,  but  query effect  on Party rule.   Potential  for courts  to  establish  human rights  chambers  and Party Discipline  Inspection System to include human rights review. 7. Abolition  of  “reeducation  through  labour”:  Already  found  acceptance  in government and Party leadership – issue is not so much politicization (see Seymour), but underfunding and maltreatment of detainees. 8. Elections of public officials: Conflicts with the Chinese Communist Party’s assertion to a legitimate monopoly on power.  But potential accommodation in local elections process. Main issue of accountability, which might be achieved through other types of administrative reforms. 9. Equality among rural and urban residents: Seems largely unproblematic for the ruling Party,  which has  already made significant  reforms in  the  hukou system that discriminated against rural residents. However, the mechanisms for bringing equal treatment of rural and urban populations remain still to be made fully effective. 10. Freedoms on forming groups, assembly, expression and religion: Challenge the limits on these rights articulated in the PRC Constitution and particularly the Party/state’s purported monopoly on the authority to limit recognition of such  rights,  frequently  qualified  in  terms  of  national  dignity  and  national security.  Issue ultimately is about legal process. 11. Policy reforms in areas of private property, financial and tax reform, social security,  and environmental  protection  are each nominally  compatible  with existing  state  law and policy.  Once  again the  issue is  implementation  and institutional capacity. Proposals for legal institutions and processes to ensure fairness,  justice,  and  equal  access  to  opportunity  represent  challenges  to improve China’s administrative law systems (including provisions for judicial review and the ‘letters and visits’ system) that bespeak the current inadequacy of these systems.  Nonetheless, potential for accommodation exists. 12.  Federated republic that would extend equality and fairness to Hong Kong and Macau  along  with  existing  freedoms;  would  find  a  peaceful  unification solution  for  Taiwan,  and  providing  a  workable  framework  for  China’s nationality  minority  areas  in  which  all  ethnic  and  religious  groups  can flourish.  These goals seem broadly commensurate with existing PRC policy, although Beijing has retained for itself  options to assert  the primacy of its political authority in each of the regions discussed. 13. “Truth in Reconciliation” process to restore reputations of political targets and political prisoners, release of political prisoners and prisoners of conscience, and  the  payment  of  reparations  as  well  as  an investigation  commission  to determine facts of past injustices and atrocities. While this may well be the most dramatic proposal in Charter 08, it also raising important opportunities for building political unity in China. Facing a significant legitimacy deficit, the Chinese Communist Party has consistently refused to open up historical records or engage in serious reflection on the range of political campaigns and disasters  that  have  beset  China  since  the  PRC  was  founded.   Under circumstances where many in leadership positions seem keen to strengthen the governance  capacity  of  the  Party/state,  Charter  08’s  proposal  on truth  and reconciliation offers an opportunity to rise above the limitations of ideological rigidity and political orthodoxy to confront the errors of the past and build a new consensus on the future. Here again, we see the contours of Selective Adaptation in the policy proposals of Charter 08, as it  reinterprets  the political,  legal,  and administrative arrangements necessary to achieve the principles articulated earlier.  Perception, Complementarity, and Legitimacy of competing ideals,  underlying norms, and institutional mechanisms are evident.   As well,  Institutional Capacity questions are also present, as the policy proposals centre on institutional reforms and their potential to support reform. IV. Implications The  fundamental  challenge  posed  by  Charter  08  rests  on  the  conclusion  that China’s development cannot be fully and equitably realized without far-reaching political and legal reforms. Over the past several decades and particularly since the disaster of Tiananmen  in  1989,  the  Party/state  has  offered  the  people  of  China  a  trade-off  of economic  wellbeing  in  exchange  for  political  loyalty.  Similar  to  the  “zone  of indifference” spoken of by Tang Tsou to describe the government’s grant of increased socio-economic autonomy, the trade-off of economic wellbeing for political subservience – what might be termed a ‘development bargain’ - was often characterized by reference to the discourse of stability. Coupled with the importance of stability has been the insistence on political orthodoxy. As expressed in the Preamble to the 1982 Constitution, “The basic task of the nation in the years to come is to concentrate its effort on socialist modernization.  . . . The Chinese people must fight against those forces and elements, both at home and abroad, that are hostile to China's socialist system and try to undermine it.” During the early  1990s,  when economic growth rates  continued to rise and universal prosperity seemed possible, the ‘development bargain’ seemed to hold. More recently, however, problems of income inequality, official corruption, abuse of power by public officials as well as private market actors, failures to provide environmental protection, increased costs and inaccessibility of health and educational services have all challenged the  viability  of  the  development  bargain.  Yet  rather  than  simply  urging  that  greater attention be paid to increasing economic wellbeing, the signatories of Charter 08 have urged broad political and legal reforms as a necessary precondition for realizing China’s development  goals.  This,  coupled  with  the  skillful  appropriation  of  rights  discourses already acknowledged by the Party/state, has posed a fundamental challenge to regime legitimacy.  In  effect  Charter  08  stands  for  a  position  that  says,  the  promises  of  the development bargain will remain unmet unless the Party/state gives operational meaning to  the  ideals  expressed  in  official  rhetoric  on  rights  and  development.   While  the challenges posed by Charter 08 are unavoidable, the opportunities are also significant. For many of the principles and proposals of Charter 08 find resonance in ideals of PRC governance and may indeed further realization of those ideals. V. Comparisons with June 4 We are tempted to conflate various expressions of dissent in China into a single trend with a more or less consistent narrative emphasizing demands for more political and  civil  freedoms  and  more  government  accountability  for  misrule.  From  such  a perspective, Charter 08 seems a logical development from 1989. And indeed, the focus of critique seems eerily similar,  as issues of corruption,  official  abuse of power, lack of accountability of governance institutions resonate from 1989 to the present. So too does the impact  of economic crisis and attendant policy debate and discord.   Compare the current international economic crisis and its large-scale private sector contraction with the 1988 economic crisis in China that saw massive lay-offs of migrant workers as state investment  in  construction  was  severely  curtailed.  Beneath  the  apparent  façade  of political  unity,  policy debates over China’s current  political  and economic challenges might well generate uncertainties about political leadership of the sort that emboldened the student movement and hampered the regime’s response. Such similarities with 1989 should give pause to those who are tempted to dismiss Charter 08 as a minor disruption by a small collection of powerless dissidents. However, the significance of Charter 08 would seem to derive as well from significant distinctions from 1989 on matters of organization and participation that reflect changing conclusions about the processes of legal and political reform.  Unlike the increasingly well organized student movement in 1989 (the formation of the ‘democracy university;’ the highly formalized pass system used to provide access to the Monument to People’s Heroes  and  the  central  student  leadership;  the  processes  and  rules  developed  for collective  decision-making  among  the  students,  all  speak  to  the  increasingly  formal organizational practices that emerged); the Charter 08 signatories are connected mainly by their commitment to the ideals expressed. They work in different institutions whose goals are seldom uniform; they have no formal membership organization amongst them; their public statements and decisions have shown little evidence of collective decision- making. In a sense, Charter 08 reveals the extent to which the lessons of Tiananmen were learned. For the political  crisis of 1989 did indeed end bloodily as my friend has suggested it would,  and stands  as  a  timeless  reminder  of the regime’s  willingness  to  use military might against China’s own citizens to retain power. And such was the message expressly conveyed by the regime to its subjects. Subsequent campaigns against independent labor organizers,  Falungong practioners, and lawyers reveal the consistency of the message: organizational alternatives to Party leadership are unacceptable and will be suppressed. And so we find very little  evidence of publicly  organized resistance activities around Charter  08.  Instead  we  find  a  pattern  of  carefully  practiced  engagement  with establishment  institutions.  Formal  letters  to  public  security  units  inquiring  after signatories  like  Liu  Xiaobo  who  have  been  detained;  published  articles  articulating Charter 08 ideals (prior at least to the suppression campaign against Charter 08); formal remonstrance with political and judicial organs, all speak to a level of engagement with establishment  institutions  that  far  surpasses  the  actions  and expectations  of  the  1989 students. Other  distinctions  are evident  as well.  The status of the principals  has changed – no longer students (to whom Li Peng retorted that his daughter was older than the student leader Wuerkaixi), the signatories of Charter 08 include respected intellectuals at major PRC institutions.  This difference is status reflects more than simply the passage of time, as the Charter 08 Signatories vary widely in age – too much so to be counted as direct participants  in  the  1989  student  movement.   More  importantly  this  change  of  status reflects the extent to which members of establishment institutions are no longer content to use students as proxies for their political activism. This in turn reveals both the extent of  concern  over  problems of  PRC governance  -  the Charter  08 document  juxtaposes continued deprivation of human rights with continued reliance on ineffective and corrupt institutions of the rule of law and concludes that what has emerged is a system in such decline that “change is no longer optional” – and the increased breadth of society willing to express such concern. While the Charter 08 document reveals a critique of the PRC regime that has much in common with the student complaints of 1989, Charter 08’s critique and policy proposals run much deeper that those proposed in 1989. Once again the distinction involves more than the passage of time and the expanding parameters for acceptable dissent. While a shared concern in 1989 and 2009 is corruption, the proposed remedy of systemic reforms that  require  publicly  elected  and  accountable  officials  and  meaningful  rule  of  law administration goes far beyond what was demanded in 1989. While the 1989 movement can fairly be described as an effort at reforming the Party (most of the 1989 students wanted to  join the Party),  Charter  08 expressly calls  for multi-party democracy.  One implication from this is the possibility that the call for more far-reaching reforms from critics whose links with the Party and the political establishment are far closer than that enjoyed by the 1989 students was is fact a product of that closer experience. VI. Conclusion The  phenomenon  of  Charter  08  remains  in  its  early  days.  Unfortunately,  the government’s  response  to  Charter  08  has  been  largely  unsympathetic.  Prominent intellectuals signatory to Charter 08, such as Liu Xiaobo, Zhang Zuhua, Jing Quisheng, and Pu Zhiqiang have been harassed and in some cases detained.  Efforts by the family of Liu Xiaobo to receive details of his detention in accordance with Chinese law have been rebuffed. Peking University Law School has required its students to boycott Charter 08 and  other  schools  are  sure  to  follow suit.  With  increased  public  dissatisfaction  over governance,  coupled  with  the  régime’s  increasingly  draconian  repression  of  dissent, popular support for Charter 08 has grown.  Beginning with 303 signatures in December 08, the document had gained 8,100 by the end of January.  Despite threats of arrest and detention, Chinese people from differing walks of life including intellectuals and ordinary workers,  seem to be increasing  their  participation  in  general  human rights  discourses through their engagement with Charter 08. And while it seems unlikely that the regime will formally accept the proposals of Charter 08, it seems equally likely that components of Charter 08 will begin to affect the discourse of legal and political reform. To a significant degree this would seem likely because of the differences between Charter 08 and the 1989 student movement.  The lack of apparent organizational cohesion makes the  Charter  08  phenomenon  more  difficult  to  suppress  –  both  organizationally  and politically.  With no headquarters  to bombard and a membership with both status and connections,  supporters  of  Charter  08  may  well  elude  certain  elements  of  regime repression  based  on  the  thinnest  of  rationales.  As  well,  the  willingness  to  rely  on establishment institutions draws on the professional expertise of many of the Charter 08 signatories,  who may well  be  more  adept  at  eliciting  institutional  protection  that  the government security apparatus may be in opposing it. Indeed the Charter 08 phenomenon may well invite the sort of politicization of establishment institutions that demonstrates a fundamental thesis of the document. While the final outcome of the process of challenge and response associated with Charter 08 remains obscure, and may never escalate to the degree faced by a similarly uneasy and insecure regime in 1989, the commonalities of message and the differences of organization and participation make Charter 08 a matter worth continued observation and study.


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